2000-(099)-COMPCAS -0519 -DEL Companies Act Judgements



Crl. M. (M) No. 3179 of 1999 and Crl. M. No. 9591 of 1999, decided on December 16, 1999.


S. S. Gandhi for the petitioner.


Puneet Arora for the respondent.


M. S. A. SIDDIQUI J. – By this petition under section 482 of the Criminal Procedure Code, 1973, the petitioner seeks quashing of the criminal proceedings emanating from the complaint filed by the respondent-company against the petitioner and others under section 138 of the Negotiable Instruments Act, 1881, (for short “the Act”).

Pertech Computers Ltd. is a limited company. The petitioner is a director of the said company. Three cheques were issued on behalf of the accused-company for the debts due to the complainant-company and such cheques were dishonoured by the drawee bank on the ground of insufficiency of funds in the account. Legal notices were issued to the accused-company as well as to the directors demanding payment of the amounts covered by the cheques, but no amount was paid. Hence, a complaint was filed alleging that all the accused persons have committed the offence under section 138 of the Act in respect of each of the cheques. On the complaint being filed, the learned magistrate issued process against the accused persons including the petitioner. Aggrieved thereby, the petitioner has come up before this court under section 482 of the Criminal Procedure Code.

Learned counsel for the petitioner contended that the petitioner had resigned as a director of the company on December 29, 1997, i.e., before the offending cheques were issued, and his resignation had also been accepted by the accused-company under intimation to the Registrar of Companies in Form 32 on March 31, 1998, and thus at the relevant time the[petitioner was not in charge of and responsible for the business of the accused-company. According to learned counsel for the petitioner, the learned magistrate has committed an illegality in issuing process against him. It is alleged in para. No. 3 of the complaint that the petitioner is one of the directors of the accused-company and he had also signed the share certificates on behalf of the accused-company. The complainant’s witness Mukesh Arora (P.W.-2) testified that the petitioner and other accused persons had approached the complainant-company for financial help and his company had agreed to advance loan against allotment of preferential shares and that on October 1, 1996, the accused-company, at the instance of the petitioner and the accused R. P. Goyal issued five lakhs preferential shares of Rs. 10 each and that at the time of allotment of these shares the accused persons had also issued the offending cheques in favour of his company. Thus, the averments made in the complaint read along with the statement of the said witness prima facie go to show that at the relevant time, the petitioner, being a director of the accused-company, was also in charge of and responsible for the business of the accused-company. The question whether or not the petitioner had resigned on December 29, 1997, as a director of the accused-company is a disputed question of fact. It is well settled that while exercising inherent power under section 482 of the Criminal Procedure Code, this court should not enter into the arena of a disputed question of fact. Thus, in my opinion, the learned magistrate has not committed any illegality in taking cognisance of the offence against the petitioner.

In the result the petition is dismissed. Parties are directed to appear before the trial court on December 24, 1999.

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